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Almerico v. Denney

United States District Court, D. Idaho

March 28, 2019

LAWERENCE DENNEY, as Idaho Secretary of State in his official capacity, LAWRENCE WASDEN, as Idaho Attorney General in his official capacity, RUSSELL BARRON, as Director of the Idaho Department of Health and Welfare in his official capacity and THE STATE OF IDAHO, Defendants.




         Idaho Code § 39-4510 provides that all healthcare directives executed by women in Idaho must contain the following provision: “[i]f I have been diagnosed as pregnant, this Directive shall have no force during the course of my pregnancy.” The Court must resolve two interrelated questions in deciding Defendants' Motion to Dismiss. Dkt. 17. First, does the test for facial constitutional challenges outlined by the Supreme Court's decision in United States v. Salerno, 481 U.S. 739 (1987) apply to the case at bar? Second, if Salerno applies, is there a set of circumstances in which IC § 39-4510 can be applied in a manner that comports with the Due Process and Equal Protection Clauses of the United States Constitution? Because the Court concludes that the answer to both questions is yes, it will grant Defendants' Motion to Dismiss, but with leave to amend to assert an as-applied challenge. In granting leave to amend, the Court does not encourage or discourage such a filing, and does not offer an opinion as to whether such a challenge can be successfully stated by an existing plaintiff.


         Idaho's Medical Consent and Natural Death Act, Idaho Code §§ 39-4501 et seq., “recognize[s] the right of a competent person to have his or her wishes for medical treatment and for the withdrawal of artificial life-sustaining procedures carried out even though that person is no longer able to communicate with the health care provider.” I.C. § 39-4509(2). The Act accomplishes this goal, in part, by providing a model “Living Will and Durable Power of Attorney for Health Care” forms (combined, the “Model Form”), that Idaho citizens may fill out. I.C. § 39-4510.

         The Model Form is available for download on the Idaho Secretary of State's health care directory registry webpage.[1] Although Idaho citizens are not required to use the Model Form, in order for an Idaho citizen to register their Living Will and Durable Power of Attorney for Health Care with the Idaho Secretary of State, the document submitted must be “substantially … [similar to, or] contain[] the elements set forth” (hereinafter, the “Incorporation Clause”) in the Model Form. I.C. § 39-4510(1). A health care directive that fails to meet this requirement will not be registered by the Idaho Secretary of State. I.C. § 39-4510(2). But, the statute also provides that “[f]ailure to register the health care directive shall not affect the validity of the health care directive.” I.C. § 39-4510(2). Obviously, this provision of the Act raises some question about whether a non-compliant, unregistered health care directive would be enforceable. However, for purposes of the pending motion, the Court will assume that it would not.[2]

         This litigation stems from a single provision in the Model Form stating that “[i]f I have been diagnosed as pregnant, this Directive[3] shall have no force during the course of my pregnancy” (hereinafter, the “Pregnancy Exclusion”). I.C. § 39-4510. As discussed above, due to the Incorporation Clause, this provision is a necessary component of all health care directives in Idaho. The Idaho Secretary of State, in apparent reliance on the Pregnancy Exclusion, has issued the following guidance regarding health care directives on its “Frequently Asked Questions” webpage:

[Question] 13. What happens if I am pregnant when I become incapacitated?
[Answer:] Life sustaining measures will continue regardless of any directive to the contrary until the pregnancy is complete.[4]

         Finally, if an individual (1) does not have an executed version of the Model Form or a document that satisfies the Incorporation Clause and (2) cannot consent to care due to age or health, then the Idaho Code provides that a “surrogate decision maker” may make health care decisions for the individual. I.C. § 39-4504(1). The “surrogate decision maker['s]” authority to consent to treatment on behalf of an individual is limited by statute in the following ways: “the surrogate decision maker shall not have authority to consent to or refuse health care contrary to such person's advance directives, POST or wishes expressed by such person while the person was capable of consenting to his or her own health care.” Id.


         1. Salerno Applies to Plaintiffs' Challenge

         A. Salerno's “No Set of Circumstances” Test

         The pivotal question here is whether Plaintiffs' facial challenge to the statute is governed by the Supreme Court's decision in Salerno. In Salerno, the Supreme Court stated that facially challenging a statute is “the most difficult challenge to mount successfully.” 481 U.S. at 745. To prevail on a facial challenge to the constitutionality of a statute, a litigant must satisfy the heavy burden of showing that “no set of circumstances exist[] under which the [a]ct would be valid.” Id. It is not enough to show that an act “might operate unconstitutionally under some conceivable set of circumstances.” Id. Facial challenges are “disfavored” because they (1) “raise the risk of premature interpretation of statutes on factually barebone records, ” (2) “run contrary to the principle of judicial restraint, ” and (3) “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 451 (2008) (internal citations and quotations omitted).

         B. Debate Regarding the Validity of Salerno

         Salerno's “no set of circumstances” test is the subject of considerable controversy. As Plaintiffs are quick to point out, Dkt. 26 at 10-11, a faction of Justices on the Court has regularly called into question the wisdom of Salerno. See, e.g., City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) (Stevens, J., with two Justices concurring) (criticizing Salerno and labelling its “no set of circumstances” test as dicta). However, another faction has consistently reaffirmed that Salerno is the appropriate test for nearly all facial challenges. See Planned Parenthood of S. Arizona v. Lawall, 180 ...

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